In Part 1 of this topic, I listed a number of steps parties can take to get increased judicial intervention in discovery issues and left open the question of whether those steps are actually desirable. In this Part 2, I explain that my opinion is that lawyers should not be engaging in most of these behaviors. Instead, we should embrace technology and our professionalism.
Certainly discovery costs are an important factor for everyone to consider in litigation, but steps parties can take to increase judicial intervention in order to reduce costs generally seem to impose unjustified limits. I believe that the new amendments to the Federal Rules (and most active litigators’ mindsets) are based on knowledge of and experience with antiquated and expensive ediscovery technology. In essence, these amendments view limits on what people can do as a more effective approach than embracing ever improving technology.
Let’s take a more detailed look at the suggestions mentioned in my last post...
The first suggestion was to limit the corpus of documents collected. In reality, how does one know what is an appropriate limit at such an early point as the Rule 26(f) meeting? For example, how many people know, in advance, exactly how any given case is going to progress and what issues are going to be relevant? If the lawyers do their jobs correctly when assessing the case, they may have a pretty good idea, but no lawyer can know how a case will twist, turn, and ultimately end. Limiting collection or discovery to a set of key word searches substantially reduces a lawyer’s ability to explore the nuances of a case and substantially reduces the amount of potentially responsive material a lawyer gets to review.
The same criticism is true of agreements to search only certain document storage locations or custodians. There is no reasonable way a party can effectively know where the opposing party should search for documents. Agreeing to such limitations seems foolish at best, even if one reserves the right to return to the court for more discovery if necessary. Returning to the court is simply extra work that need not happen absent the agreement in the first place. I’m not suggesting that lawyers should not engage in good faith negotiations as required by Rule 26. Instead, parties should not give away their right to discovery for the sake of expediency or cost concerns unless those decisions are justified by some case strategy.
Most of the other proposals are also objectionable, but less so. For example, absent the court telling parties their briefing should be limited, why in the world would a lawyer agree to self imposed limits on briefing without knowing what the issues and arguments are going to be? Many courts already impose limits on discovery briefs, and a further limitation just imposes additional, unnecessary motion practice to get extra briefing on the discovery dispute. A major dispute may require substantially more than three pages, and a novel issue of law certainly justifies a full briefing. Requesting a special master incurs a potentially substantial expense, and having a magistrate or a special master address discovery disputes while the district court address other disputes necessarily means the district court has a less complete view into the dispute and into the credibility of counsel and parties before the court.
I do agree that the parties should be knowledgeable about the latest ediscovery technology and market conditions. In fact, many states, such as California, are actually moving knowledge about legal technology into what it means to be competent to practice law. Whether that knowledge is provided in any case through an ediscovery liaison, however, seems to be a question of money, determined at least in part by the amount in controversy and the complexity of the ediscovery issues.
I think the best solution to the problems associated with increasing data size and increasing costs associated with ediscovery lies in new technology and market forces guided by lawyer’s professionalism. Prices in ediscovery have been falling dramatically in recent years. While 15 years ago it may have cost $2000/gb to process data, it is common today to find solutions with no processing charge at all, and $200/gb for processing is at the highest end of the price range. Likewise, technology exists that enhances the early case assessment opportunities, and minimizes the amount of time needed to review documents. Modern technology can also substantially reduce the services portion of ediscovery costs by automating actions and processes previously done by lawyers and other legal staff manually. The net result is that the same amount of data can be reviewed and produced at a dramatically lower cost compared to five years ago, and substantially greater amounts of documents can be produced if necessary at the same overall costs today that would have been incurred on much smaller datasets in the past.
Of course, it is up to lawyers to be aware of and use new technology. Many bar associations are beginning to require that lawyers be knowledgeable about new technology in order to be considered competent to practice law. Lawyers also generally have to stay abreast of new technology if they want to maintain business in a highly competitive legal market. My belief is that lawyers will have no choice but to continue to embrace new technology, and I suggest that in many ways advances in technology are already addressing the concerns identified in the proposed amendments to the Federal Rules. Instead of artificially limiting what lawyers can (and ethically should) do to zealously represent their clients’ interests, we should allow lawyers to do their jobs by aggressively adopting modern technology that can and will drive price and effort involved in doing so down to reasonably levels.